UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 08-2133

J A M E S I

. E V A N S , A P P E L L A N T ,

V

. E R I C K. S H I N S E K I , S E C R E T A R Y O F V E T E R A N S A F F A I R S , A P P E L L E E

. On Appea l from the B oard of Veter ans' Appea ls (De cided Aug ust 4, 2011)
Kenneth L. LaVan , with whom Dianne E. Olson , both of For t L auder dale, F lorida, wa s on the pleading s for the a

ppellant

. W ill A. Gunn, Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; Edward V. Cassidy , Jr ., Deputy Assistant Gene ral Counsel, and Christ opher O. Adeloye , all of Washington, D.C., for the a

ppellee.

Be fore MOORMAN, L ANCE, and SCHOEL EN, Judges. MOORMAN, Judge , filed the opinion o f the Court. L ANCE, Judge , filed a dissenting opinion. MOORMAN, Judge : The appellant, J ames I

. Evans, throug h counsel, appea ls an April 17, 2008, Boa

rd of Veter ans' Appea ls (B oard) decision t hat denied his claim of entitlement to service

connec tion for t h e re siduals of a collapsed lung, rema nded his claims of entitlement to service

connec tion for a back disorder and to a compensa ble evalua tion for residuals of a fra cture d distal left fibular sha ft, and effe ctively dismiss ed his claims for a sbestos exposure, hepatitis B, a nd hepatitis C. Record (R.) at 3-4. On J anuar y 28, 2011, this panel issued a decision reve rsing in part the April 17, 2008, decision and rema nding for further proce eding s. On Fe bruar y 16, 2011, the Secre tary filed

a motion for partial rec onsideration of the J anuar y 28, 2011, decision. At the Court's invitation, on Marc h 31, 2011, the appe llant filed a re sponse in opposition t o partial re consideration. The Co u r t conclude s that rec onsideration is war rante d based upon the Secre tary ' s compelling
arg ument that the Court's J anuar y 2011 opinion, rea d broadly , held that the Secre tary waives his ability to dismiss claims if a claimant uses VA For m 9 and chec ks Box A of Bloc k 9, indicating thathe wishes to appea l all issues lis t ed i n t h e S tatement of the Case (SOC), and must adjudicate all

issues listed in the SOC even wher e the evidenc e of rec ord may al s o i n d i ca t e that the claimant wished to limit his appea l to cer tain issues. Acc ording ly , the Court will g rant the Secre tary ' s motion for pa rtial rec onsideration, withdra w the Court' s J anuar

y 28, 2011, opinion, and issue this opini on in its st ead. This appea l is timely , and the Court has jurisd i ct i o n o v er the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. The appellant does not prese nt any arg ument conce rning the denial of his claim for the residuals of a collapsed lung. Acc ording ly , that claim is deeme d abandone d. See Ford v. Gober , 10 Vet.App. 531, 535 (1997). I n addi tion, the Court will not discuss the claims

rema nded by the Boa

rd, as the Court does not have jurisdiction over them and the appellant makes

no arg ument with respe ct t o them. See Link v. W est , 12 Vet.App. 39, 47 (1998); Marlow v. W est , 11 Vet.App. 53, 55 (1998). For the rea sons set forth below, the Court will vacate the April 17, 2008, Boa rd decision as to its dismiss al of the appellant' s claims of entitlement to se rvice connec tion f or asbestos exposure, hepatitis B, and hepatiti s C an d rema nd those matters for further proce eding s consistent with this opinion. Howeve r, the Court will dismiss the appellant' s appea l as to his claims for memory loss, migr aines, and plantar fasc iitis that wer e not the subject of the Boa rd decision on appea l.

I. BACKG ROUND The appellant serve d on active duty in the U.S. Army from Aug ust 1968 until Aug ust 1970. R. at 573. I n J uly 2003, the appellant filed a claim with the St. Petersburg , Florida , reg ional office (RO), seeking entitlement to se rvice connec tion f or a back condition, bilate ral wrist conditions, he patitis C, car pel t unnel s y

ndrome, a col l ap s ed lung, drug addiction, and a lung conditi on due to asbestos
exposure. R. at 484-85. The appellant also soug ht a compensa ble rating for his service -conne cted distal left fibular shaft fra cture and the reope ning of a previously denied claim for a fore head injury

. R. at 484. At a later date, the appellant added claims for an ey e condition, hepatitis B, a stab wound to the chest, a

nd a hea rt condition. R. at 448, 450. I n Fe bruar

y 2004, the RO issued a rating decision that disposed of 16 separ ate claims. R. at

2391. Wit hin tha t de cision, the RO continued the appellant' s noncompensa ble rating for his f

ibular shaft fra cture , denied entitlement to a non-ser vice- connec ted pension, and also denied reope ning of the appellant' s claim for the residuals of a fore head injury

. R. a

t 391. The decision further denied entitlement to service connec tion for an ey e condition, the residuals of a stab wound to the chest, the residuals of a collapsed lung, asbestos exposure, hear t trouble, drug and alcohol addiction, hepatitis B an d C, a back disability , car pal tunnel sy

ndrome, a scar on the left wrist, and bilatera l plantar fasc iitis

. Id

. The appellant timely filed a Notice of Disag ree ment (NOD ) to the RO' s decision with
respe ct to his claims for asbestos exposure, a back disability , a collapsed lung, hepatitis B and C, and his distal left fibular shaf

t frac ture. R. at 379-84. The appellant also raised new c laims for a ne ck condition, migr ain es , an d m em ory loss. Id

. Howeve r, the appellant did not express any disag ree ment with the other ten c laims decided by the RO in the Fe bruar

y 2004 decision. Id

. I n September 2004, the RO issued an SOC with respec t to the s ix claims ref ere nced in the appellant' s NOD. R. at 311-31. The RO also issued a rating decision with respe ct to the appellant' s newly filed claims for a neck condition, migr aines, and memory loss. R. at 334-39. The rec ord befor e the Court does not ref lect that the appellant filed an NOD with respe ct to the September 2004 rating decision; howeve r, using a VA For m 9, the appellant filed a Substantive Appea l to the Boa rd 1 in November 2004 conce rning the "issues" outlined in the September 2004 SOC. R. at 309-10. On h is For m 9, the appellant chec ked Box A within Bloc k 9, which stated: "I WANT T O AP P E AL AL L OF THE I SSUES L I STED ON T HE S T ATEMENT OF THE CASE AND ANY SUPP L EMENTAL

STATEMENTS OF T HE CASE THAT MY L OCALVA OF FI CE SENT TO ME." R. at 309. Box B within Bloc k 9 is to be completed only if the claimant is appea ling some but
not all of t he is sues on the S OC. Id

. Be low Box B is a spac e for the claimant to list the i ssues he wishes to appea l. Although the appellant did not chec k Box B within Bloc k 9, in the space provided below Box B of Bloc k 9 on the same For m 9, the appellant specific ally listed the RO' s denial of his claims for an incre ased rating for his service -conne cted frac tured dist al fibul ar sha ft and denial of his claims for a ba ck injury and re siduals of a c ollapsed lung

. Id

.

T h e a p p e l l a n t 's V A F o r m 9 t h a t w a s s u b m i t t e d b y t h e p a r t i e s a s p a r t o f t h e r e c o r d o f

p r o c e e d i n g s i s a t t a c h e d 1
t o t h i s o p i n i o n
. R

. a t 3 0 9

. A l t h o u g h t h e p r i n t e d i n s t r u c t i o n s f o r c o m p l e t i n g t h e V A F o r m 9 w e r e n o t i n c l u d e d i n t h e r e c o r d o f p r o c e e d i n g s , t h e C o u r t i s a t t a c h i n g a c o p y o f t h e f u l l t e x t o f V A 's F o r m 9 i n c l u d i n g t h o s e i n s t r u c t i o n s
. T h i s i s t h e s a m e v e r s i o n o f t h e f o r m t h a t w a s s u b m i t t e d b y t h e a p p e l l a n t

. 3I n the decision now on appea l, the Board fully addre ssed t he th re e "issues" specific ally

outlined in the appellant' s Form 9 in the blank space below Box B in B lock 9 and fur ther in B lock 10; howeve r, the Boa

rd dismiss ed the appellant' s claims for (or issues of) asbestos exposure, hepatitis B, and hepa

titis C. The Boa

rd, in the decision on appea l, obse rved that the appellant had orig inally included these issues in his appeal. I t then stated However , in his October 2004 VA For m 9, the veter an stated that he was only appea l i n g t he issues of entitlement to service connec tion for a back disorder and residuals of a collapsed lung and for an incre ased evalua ted (sic) for his residuals of
a fra cture d distal left fibular shaft. As such, the veter an has not filed a [S ]ubst antive [A] ppeal f

or the other

issues. See 20 C.F.R. § 20.202. R. at 4.

II. ANALYSIS A. The Court' s J urisdiction I n his brief to the Court, the appellant ar gu es t h at the Boa rd err ed by not adjudicating his claims of entitlement to service connec tion for asbestos exposure, hepatitis B, hepatitis C, memory loss, migra ines, and bilater al plantar fasc iitis

. Appellant' s Br ief (B r.) at 7. Specifica lly , he asser ts that the Court' s case law re quired the B oard to liber ally rea d his F orm 9 Substantive Appeal a nd to addre s s al l i s s ues poss ibly raised within that appea l. Id

. at 20-24. The S ecr etar y counter s that the Court lacks jurisdiction over the appellant' s asbestos, hepatitis, memory loss, migr aine, and plantar fasc iitis claims beca

use those cla ims were ne ver pr operly raised be fore the Board. Secre tary ' s Br

. at 7. I n support of this contention, the Secre tary arg ues that, under 38 U.S.C. § 7105(d)( 5), 38 C.F.R. § 20.202, and this Court's case law, the Boa rd was fre e to dismiss claims wher e the appellant did not alleg e some e rror

committed by

the RO. Id . at 7-10. The Court's appellate j urisdiction derive s exclusively from the st at u t o ry grant of authority provided by Congr ess, and the Court may not extend its jurisdiction bey ond that which is permitted by law. Christ ianso n v. Colt Indus. Operating Corp. , 486 U.S. 800, 818 (1988); see Hende rson v. Shinseki , 131 S.Ct

. 1197 (2011). Congr ess has established that the Court "sha ll have
power to aff

irm, modify , or reve rse a decision of the Boa rd or to rema

nd the matter, as appropr iate." 38 U.S.C. § 7252(a)

. C o n s eq u entl y , the Court's "jur isdiction is premised on and define d by the

4Bo ar d' s decision conce rning the matter being appea led," and when the Boa rd has not rend er ed a decision on a particula

r issue, t h e C o u rt g ener ally has no jurisdiction under section 7252(a) to

co n s i d er the merits of the matter. Ledford v. W est , 136 F.3d 776, 779 (F ed. Cir. 1998); see also Howard v. Gober , 220 F.3d 1341, 1344 (F ed. Cir. 2000). Nonethele ss, the Court exercises de novo revie w over Boa

rd deter minations that are critica l to its juris d i ct i o n
. See Stokes v. Derwinski , 1 Vet.App. 201, 203-204 (1991) (finding that the Court may find fac ts "c rucia l to the proper deter mination of whether this Court has jurisdiction"); see also Butts v. Brown , 5 Vet.App. 532, 539 (1993) ( en banc ) (Court re views " questions of law de novo without any defe renc e to t he [Boar d' s] conclusions of l aw "). The Court revie ws do novo whether a document constitutes a Substantive Appea l. Gibson v. Peak

e , 22 Vet.App. 11, 15 ( 2007). 1. Claims (I

ssues) Dismissed by the Board The Court has the power to revie w the Boa rd' s ref usal to ex er ci s e its jurisdiction. Butts , supra
. I n this case , th e C ourt has jurisdiction to deter mine whether the Boa

rd acte d proper ly in dismiss ing the appellant' s claims for asbestos exposure, hepatitis B, and hepatitis C pursuant to 38 U.S.C. § 7105 and VA' s implementing reg ulation, 38 C.F.R. § 20.202. For the rea sons discussed below, the Court conclude s that the Boa rd failed to prov i d e an ad equate statement of rea sons or bases for i t s co n cl u s i o n t hat the appellant had not filed a Substantive Appea l on three of the six issues that were identified on his NOD a nd the RO' s SOC. P u rs u an t t o section 7105, the filing of an NOD initiates appellate revie w in the VA administ ra tive adjudication proce ss, and the reque st for appellate revie w is completed by the claimant' s filing of a Substantive Appea l, afte r an SOC is issued by VA. 38 U.S.C. § 7 1 0 5 (a ), (d)( 1), (d)( 3); see Archbold v. Brown , 9 Vet.App. 124, 132 (1996); Rowell v. Principi , 4 Vet.App. 9, 14 (1993). The statute states in rele vant par t that Copies of the " statement of the c ase" presc ribed in par ag raph (1) of this subsection will be submitt ed to the claimant an d t o the claimant' s repr esenta tive.

. . . The claimant wi ll be aff

orded a period of six ty day s from the date the statement of the
case is mailed to fi l e t h e formal appea l. This may be extended for a rea sonable period on reque st for g ood cause shown. The appea l should set o u t s pecif ic alleg ations of err or of fac t or law, such alleg ations rela ted to s p ec i fi c items in the statement of the c ase. The benef its sought on appe al must be clea rly identified.

38 U.S.C. § 7105(d)( 3). I t is well established that the Boa rd must revie w all issues and theories that

5are rea sonably raised by the claimant or

the evidenc e of r ecor d. See ge nerally Robinson v. Peak e , 21 Vet.App. 545 (2008) aff' d sub nom. Robinson v. Shins eki , 557 F.3d 1355 (F ed. C ir. 2009); see also Jarrell v. Nicholson , 20 Vet.App. 326, 331-32 (2006) (en banc) ; Mye rs v. Derwinski , 1 Vet.App. 127 (1991). The issue befor e the Court is whether the Boa rd err ed in de termining that a claimant limit s h i s ap p ea l to cer

tain specifie d issues when he files a VA For m 9 in which he chec ks the b o x indicating his desire to appea l "A L L OF THE I SSUES L I STED ON THE [S OC]", but also specifie s on the For

m 9 arg uments as to some, but not all, issues lis ted in the SOC. The S eptember

2004 SOC covere d the following six issues: (1) an incre ased rating for the appellant' s service -conne cted residuals of a fra cture d distal left fibular shaft, (2) service connec tion for a back disability , (3) service connec tion for asbestos exposure, (4) service connec tion for hepatitis B, (5) service connec tion f or hepatitis C, and (6) service connec tion f or the residuals of a collapsed lung. R. at 313. I n response to the SOC, the appellant submitt ed a Substantive Appea l in the form of a VA For

m 9, on which he chec ked Box A of Bloc k 9 indicating that he wanted to appea l "A L L OF T HE I SSUES " sta ted in the SOC. R. at 309. However , on that same VA For m 9 in the white space below Box B (which he did not chec k) within Bloc k 9, the appellant specific ally listed the RO' s denial of his claims for an incre ased rating for his service -conne cted fra cture d distal fibular shaft and de nial of ser

vice c onnection for

a bac k injury

and collapse d lung. Id

. This For m 9 was acc epted as a Substantive Appea l, and the appellant' s case went befor e the Boa rd. I n May 2005, the appellant' s repr esenta tive from a veter ans service org anization submitt ed 2

a l et t er listi ng distal fibular shaft, back injury , and collapsed lung as the "[i]s sues [p] rese nt ed fo r [r] eview." R. at 302. I n J anuar y 2008, the appellant prese nted testimony at a Boa rd hear ing. R. at 124-152. At the outset of the hear ing, the hear ing office r, without further explanation, state d that: "I n our prehe aring confe renc e we deter mined that we have three issues on appea l today , those being entitlement to service connec tion for a back disability , service connec tion for residuals of a collapsed lung, and entitlement to a compensa ble (incre ased) evalua tion f or residuals of a fra cture of the left

T h e r e c o r d b e f

o r e t h e C o u r t d o e s n o t c o n t a i n a n y e v i d e n c e o f w h e t h e r a l l o r o n l y t h r e e o f t h e s i x i s s u e s l i s t e d 2 i n t h e S e p t e m b e r 2 0 0 4 S O C w e r e c e r t i f i e d b y t h e R O a s o n a p p e a l t o t h e B o a r d

. S e e 3 8 C

. F

. R

. § 1 9

. 3 5 ( 2 0 1 1 ) ( p r o v i d i n g t h a t a V A F o r m 8 " 'C e r t i f i c a t i o n o f A p p e a l '

. . . i s u s e d f o r a d m i n i s t r a t i v e p u r p o s e s a n d d o e s n o t s e r v e t o e i t h e r c o n f e r o r d e p r i v e t h e B o a r d

. . . o f j u r i s d i c t i o n o v e r a n i s s u e " )

. 6distal fibular tip/shaft. I s that the corr ectly stated issues? " The appellant replied, "T hat' s corr ect."

R. at 125. The hear ing office r then conclude d the hear ing by asking the appellant: "I s there any thing that y ou would like to add at this time that y ou d on' t fee l that we' ve dis cussed with reg ard to y our back, y our lungs or, essentially , y our left ankle? " R. at 151. The appellant declined to add any thing. Id

. I n its April 2008 decision, the Boa rd made no further mention of this dialog nor of the "pr ehea ring confe renc e" in rea ching the conclusion that the appellant had limit ed his appea l to solely those three issues being discussed at the hear ing. Notably , any statements made at the "pr ehea ring confe renc e" are not a par

t of the re cord be fore this Court. The Boa rd noted that the veter an' s appea l had orig inally included the issu es of entitlement to service
connec tion for asbestos ex p o s u re, hepatitis B, and hepatitis C. Howeve r, in his October 2004 VA Form 9, the veteran stated that he was only appeal i n g t h e issues of entitlement to service connec tion for a back disorder and residuals of a collapsed lung and fo r an incre ased evalua t[ ion] for his residuals of a fra cture d distal left fibular shaft. As such, the veter an has not filed a [S ]ubst antive [A] ppeal for the other issues. See 38 C.F.R. § 2 0

. 2 0 2

. Acc ording ly , the issues of asbestos exposure, hepatitis B, and hepatitis C no longe r rema in in appellate status and no further consideration is required.
R. at 4. The Boa rd' s decision to dismiss the veter an' s appea l as to three issues relied on VA reg ulation 38 C.F.R. § 20.202 (Rule 202. Substantive Appea l). That reg ulation cites as its statutory authority , 38 USC § 7105 (d)( 3)-( 5). B oth are important to this decision. This C ourt has addr essed both of these provisions previously , noting that the lang uag e used in section 7105(d)( 5) (" may dismiss ") is permissive in nature and mere ly allows the Boa rd the latitude to d i s m i s s appea ls under cer tain conditions. Gomez v. Principi , 17 Vet.App. 369, 372 (2003). Howeve r, dismiss al is not mandated in any case
. I t is helpful here to start with the provisions o f R u l e 2 0 2 , which implements section 7105: A S ubstantive Appea l consists of a proper ly completed VA For m 9, "A ppeal to Boa rd of Veter ans' Appea ls," or corr espondenc e containing the nece ssary information. I f the Statement of the Case and any prior Supplemental Statements of the Case a ddresse d sever al issues, the S ubstantive Appea l must either indicate that the appea l is being perf

ecte d as to all of those issues or must specific ally identify the issues appea led. The Substantive Appea l should set out specific arg uments rela ting

7t o er rors of fac t or law made by the ag ency of orig inal jurisdiction in rea ching th e

deter mination, or deter

minations, being appea led. To the extent fea sible, t h e arg ument should be rela

ted to specific items in t h e S t at em ent of the Case and any prior Supplemental Statements of the Case. The Boa rd will construe such arg uments in a liberal manner for purposes of deter mining whether they raise issues on appea l, b u t t h e Board may dismiss any appea l which fails to alleg e specific error of fac t or law in the deter

mination, or deter

minations, being appea led. T h e Bo ar d will not presume that an appellant ag ree s with any statement of fac t contained in a Statement
o f t h e Case or a Supplemental Statement of the Case which is not specific all y contested. Proper completion and filing of a Substantive Appea l are the last actions the appe llant needs to take to perfe ct an a ppeal. 38 C.F.R. § 20.202 (2004 & 2010) (e mphasis added)

. The reg ulation states i n pertinent part that the S ubstantive Appea l "s h o u l d s et out specific
arg uments" and "to the extent fe as i b l e, t he arg uments should be rela ted to specific items in the [S OC]." The reg ulation further states: "T he Boa rd will construe such arg

uments in a liberal manner for purposes of deter

mining whether they raise issues on appea l" while noting that the "B oard may dismiss any appea l which fails to alleg e specific err ors of fac t or law

. . . ." Id

. I n this portion of the
reg ulation, the Board is direc ted t o assume the a ffirma tive obliga tion of construing the arg uments in a liberal (pro- veter an) manner
. And, the reg ulat i o n only then notes the permissive option of dismiss al if " any

appea l. . . fails to alleg e spec ific er ror." The problem in the case befor e t h e C o u rt i s that the appellant cre ated an ambig uity by chec king the box in Bloc k 9 indicating that he wanted to appea l all of the issues identified in the SOC and also inserted in the sa me B lock 9 s pecif ic m ention of t hree specific issues. This cre ated

a situation not contemplated by the instructions acc ompany ing this form. Th e i n s t ru ct ions for completion of B lock 9 stated the f ollowing: Bloc k 9. Save what y ou want t o t ell us about why y ou are appea ling for the next block. This is the block wher e y ou tell us exactly what y ou are appea ling. You do this by identify i n g t h e "issues" y ou are appea ling. Your local VA office has tried to acc urate ly identify the issues and has l i s t ed t h em on the SOC and any

SSOC it sent y ou.
I f you think that your local VA off ice has corr ect ly identif ied the i s s u es you are appealin g and, after reading th e S OC and any SSO C you rec eived, you still wan t to appeal its decisions on all those issues, check the fi rst box in block 9. Do not check the second box if you check the first box
.

8Check the second ch ec k b ox in block 9 if y ou only want to continue y our appea l on some of the issues listed on the SOC and any SSOC y ou rec eived. L ist the specific issues y ou want to appea l in the space under the second box

. Whil e y ou should not use this form to file a new claim or to appea l new issues for the first time, y ou can also use this spac e to c all the [Boar d' s] attention t o issues, if any , y ou told y our l o ca l VA office in y our Noti ce of Disag ree ment y ou wanted to appea l that are not included in the SOC or a SSOC

. I f y ou want to file a new claim, or appea l new issues (file a new Notice of Disag ree ment), do that in separa

te cor responde nce. Attachment at 4-5 (boldfac e emphasis added) . Thus, in completing his VA For m 9, this appellant

cre ated ambig uity in r eg ard to the issues he was appea ling. He chec ked Box A in B lock 9, did not chec k Box B in B lock 9 (which states an intention to appea l only cer tain listed issues) , and then in the rema ining fre e space in Bloc k 9, which appea rs to be intended for use only in limit ed appea ls for which B ox B is che cked, he inserted c omments conce rning only three issues. I n analy zing the cir cumstance s prese nted by the ambig uity

cre ated he re w ith respec t to the Substantive Appea l, the Court notes signific ant p r in c ip le s th a t th e B o a r d f a ile d to consider and apply

. First, this Court has long taken the position that VA must not confine its revie w of a document from

a pro se claimant to the four cor n er s o f the document itself. See , e.g. , Douglas v. Derwinski , 2 Vet.App. 435, 439 (1992) (discussing this principle in the context of a For m1-9 Substantive Appea l). Second, there is a "ba sic principle of the VA claims proce ss that claims will be proce ssed and adjudicate d in an informal, nonadver sarial atmosphere , and that to ensure a just outcome under this rubric VA will assist cl ai m ants in many way s." Id .; EF v. Derwinski , 1 Vet.App. 324, 326 (1991) (stating that althoug h the arg uments made in a For m 1-9 appea l to the Boa

rd often fra me the
nature of that appea l: "the re is nothing mag ical about the statements actua lly on the 1-9 form, g iven the VA' s non-adve rsar ial proce ss. The VA' s statutory ' duty to assist' must extend this liberal rea ding
to include issues raised in all documents or oral testimony submitt ed prior to the B[oard] decision." ). I n t h i s rega

rd, the Boa

rd has an obliga tion to rea d pro se filings liberally

. See Comer v. P ea ke , 552 F.3d 1362, 1368 (Fed

. C ir. 2009); Andrews v. Nicholson , 421 F.3d 1278, 1282-84 (F ed. Cir. 2005); Roberson v. Principi , 251 F.3d 1378, 1380-84 (F ed. Cir. 2001). This obliga tion also applies
to filings made by repr esente d appellants in their direc t appea ls to the Boa rd. Robinson v. Shinseki , 557 F.3d 1355, 1359 ( Fe d. Cir. 2009). Third, the Secre tary promulg ated a reg ulation, 38 C.F.R. § 20.101(d), direc ting the Boa rd to

9seek clar ification from a claimant when a claimant' s Substantive Appea l i s am b i guous as to the

issues raised on a

ppeal. This re g ulation provides: The Boa rd may addre ss questions perta ining to its jurisdictional authority to revie w a particula

r case , including, but not limit ed to, deter mining whether

. . . Substantive Appea ls are adequate

. . ., at any stag e in a proce eding befor e it, reg ardle ss of whether the ag ency of orig inal jurisdiction addre ssed such question(s). When the Boa rd, on its own init iative, ra ises a question as to a pote ntial jurisdictional defec t, all parties to the proce eding and their repr esenta tive(s), if any , will be g iven notice of the potential jurisdictional defe ct(s) a nd g rante d a period of 60 day s following the date
on which such notice is mailed to prese nt written arg ument and additional evidenc e rele vant to jurisdiction and to reque st a hear ing to presen t o ral arg ument on the jurisdictional question(s). . . . 38 C.F.R. § 20.101(d). Rather, the Boa rd determined, on its own i nitiative and without notice to 3 the appellant, that: "the veter an has not filed a [S ]ubst antive [A] ppeal for the other issues. See 38 C.F.R

. § 2 0 .202. Acc ording ly , the i ssues of asbestos exposure, hepatitis B, and hepatitis C no longe r rema in in appellate status and no further considerat i o n i s re q u i red." R. at 4. VA' s own reg ulations, let alone a veter an-f riendly , non-adve rsar ial proce ss, do not permit the Boa rd ab initio
to dismiss ce rt ai n issues within an appea l without first aff ording the appellant the benef it of the
proce dure mandated by 38 C.F.R. § 20.101(d): to provide notice of the Boa rd' s perc eived defe ct in the Substantive Appea l cre ated by a claimant' s response on the For m 9 and an opportunity to prese nt arg ument and/or e vidence on the issue of the a dequac y of the Substantive Appea l. On t he fa cts of this case , wher e the a ppellant completed a VA For m 9 and checke d Box A of Bloc k 9 stating that "I WANT TO APPEAL AL L OF THE I SSUES L I S T E D ON THE STATEMENT OF THE CASE AND AN Y SUPP L EMENTAL STATEMENTS OF THE CASE THAT MY L OCAL VA OFF I CE SENT TO ME," but then further completed Bloc k 9 by listi ng only

cer tain issues, the Boa

rd' s unexplained statement that the appellant had limit ed his appea l b y t he

manner in which he completed his VA For m 9 constitutes err or. I t fa i l s t o adequately provide

rea sons or bases for the dismiss al of the rema ining issues. Fa ced with the ambig uity cre ated by the appellant in the S ubstantive Appea l, the veteran-f riendly p ro cess requires VA at t he R O or Boa rd
to seek clar ification and communicate with the appellant as to any perc eived conce rn about how the

I n P e r c y v

. S h i n s e k i , 2 3 V e t

. A p p
. 3 7 , 4 5 ( 2 0 0 9 ) , t h i s C o u r t h e l d t h a t t h e s t a t u t o r y p e r i o d w i t h r e g a r d t o f i l i n g 3

a S u b s t a n t i v e A p p e a l i s d i s c r e t i o n a r y a n d t h e t i m e f r a m e i s n o t a p p r o p r i a t e l y d e e m e d " j u r i s d i c t i o n a l

. "
10appellant had filled out the For m 9. I ndeed, suc h action would be c onsistent with VA' s obliga tion under § 20.101( d). Howeve r, the rec ord befor e the Court contains no evidenc e of any effort by VA to clar ify whether the appellant was appea ling all the issues in the SOC or only three issues. The Boa rd failed
to c omply with VA' s own proce dural require ments found in 38 C.F.R. § 20.101(d). This failure to notify the appellant here was prejudicia l to the appellant beca use the appellant had no opportunity , prior to the Boa

rd decision, to prese nt arg ument and/o r ev i d en ce in support of his position with
respe ct to what issues he was appea ling and any err ors in the RO' s adjudication of those issues. The Boa rd summarily decla

red that the appellant "s t ated that he was only appea ling the issues of entitlement to service connec tion for a back d i s o rd er an d residuals of a collapsed lung and for an incre ased evalua t[ ion] for his residuals of a fra cture d distal left fibular shaft." R. at 4. Yet, no such statement fr om the appellant c an be f ound on any

portion of the F orm 9. See R. at 309. The Court notes that the VA For m 9, Bloc k 9, containing two appar ently mutually exclusive options, toge ther with sufficie nt white space that a person chec king Box A in Bloc k 9 might also add additional information in that block, invites ambig uity in a claimant' s response
. That is prec isely the ambig uity we deal with today

. Howeve r, afte r the filing of this For m 9, the Boa

rd and the appellant

wer e not power less to limit the issues on appea l in this case
. As noted above, the Boa rd could have resolved any ambig uity by providing notice to the appellant of any potential defe ct in his Substantive Appea l "a t any s t age i n a proce eding befor e [t he Boa rd]." 38 C.F.R. § 20.101(d). Fur ther, the Secre tary has specific ally provided proce dures for a withdrawa l of an entire appea l or issues within

an appea l, which proce dures specific ally re q u i re t h at the withdrawa l be in writing

. 38 C.F.R. § 20.204. Thus, the issues on ap p ea l co u l d h ave been limit ed if the rec ord was clea r that the appellant wished to do so. Howeve r, there is nothing in the rec ord befor e the Court to make it clea r that the Boa

rd hear ing office r informed the appellant that the manner in which he had completed his VA F orm 9 might lea d to a conc lusion that only three issues were on appea l. T h e S ec re t ary arg ues that the leg islative and reg ulatory history of 38 U.S.C. § 7105 and 38 C.F.R. § 20.202 show that Congr ess n ev er intended to relieve the claimant of the burden of "ide ntify [i ng ] issues they wish to a p p e a l a n d a s s e r t[ in g ] s p e c if

ic err or in the administrative decision." Secre tary ' s Motion for Partial Reconsider ation at 2-8. He further arg ues that VA is not obliga ted to

11inform the claimant that cer tain issues will be deeme d abandone d on appeal u p o n the claimant' s failure to raise an asser

tion of err or. Neither of these arg uments addre sses the unique circ umstances b ef ore the Court, in which the appellant' s completion of the VA For m 9 clea rly eng ende re d an ambig uity of which VA had a duty , under its own reg ulations, to notify the appellant and g ive him

an opportunity to prese nt written arg ument and additional evidenc e rele vant to the issue, actions which may

likely lead to cla

rifica tion as to which matters a re be ing a ppeale d. The comments rec eived by VA during the development of reg ulations g overning VA' s trea tment of issues on ap p ea l to the Boa rd expressed conce rn that the reg ulations g rante d the Secre tary too much discretion to unilatera lly dismiss an appea l. See 48 Fe d. Reg

. 6961, 6964 (1983), 57 Fe d. Reg . 4088, 4093 (1992). I n response to those conce rns, VA noted tha t the Boa rd has been, and will continue to be, very liberal in this are a. This Rule of Practice also provides that "T he Bo ard will construe such arg uments in a liberal manner for purposes of deter

mining whether they raise issues on appea l

. . ." and § 20 .203[ ] 4 provides that appellants and repr esenta tives will be g iven notice and an opportunity t o co ntest the matter when the [Board] questions the adequa cy of the Substant i v e Appea l. 57 Fe d. Reg . 4088, 4093 (1992). As noted above, VA has a multit ude of avenue s available to clar ify the issues on appea l that

are consistent wi th pro-ve tera n, claimant-f

riendly claim development. The entire veterans claims adjudication proce ss r e f

le c ts th e c le ar cong ressional intent to cre ate an Ag ency environment in which VA is actua lly eng ag ed in a continuing dialog with claimants in a pater nalistic, collabora tive eff

ort
to provide ever

y benef it to which the claimant is entitled. I n acc ordanc e with the Secre tary ' s asser ted position, VA not only does not eng ag e in such a dialog , but rathe r need not even communicate to a veter an that he has not perf ecte d an appea l as to cer

tain issues he might o t h er wise believe are on appea l to the Boa

rd until the veter an rec eives that messag e many y ear s later in a final Boa rd decision. The veter an' s only rema ining chanc e to rec eive an initial Boa rd adjudication on the merits o f any issue deeme d abandone d by the Boa rd is then to reque st Boa rd reconsideration

. Howeve r, the

I n 2 0 0 1 , 3 8 C

. F

. R

. § 2 0

. 2 0 3 w a s w i t h d r a w n a n d r e p l a c e d w i t h § 2 0

. 1 0 1 ( d ) , w h i c h p e r m i t s t h e B o a r d t o 4

" d i s m i s s a n y c a s e o v e r w h i c h i t d e t e r m i n e s i t d o e s n o t h a v e j u r i s d i c t i o n
. " 3 8 C

. F

. R

. 2 0

. 1 0 1 ( d ) ; 6 6 F e d

. R e g
. 1 7 8 4 0 , 1 7 8 4 1 ( 2 0 0 1 ) ; 6 6 F e d

. R e g
. 5 3 3 3 9 ( 2 0 0 1 )

. H o w e v e r , § 2 0

. 1 0 1 ( d ) r e q u i r e s t h a t t h e B o a r d f i r s t p r o v i d e t h e c l a i m a n t w i t h
n o t i c e o f a n y p e r c e i v e d d e f e c t o f a n e n t i r e S u b s t a n t i v e A p p e a l a n d t h e o p p o r t u n i t y t o c o n t e s t t h e a s s e r t e d d e f e c t

. 12Boa

rd' s standard for g ranting rec onsideration is a burdensome standard for the veter an to meet. The Ch ai rm an o f the Boa

rd or his deleg ate has the sole discretion to choose the decisions that will be

rec onsidered and limit s the decision to a revie w to the following g rounds: (a) u p o n al l ega t i o n of obvious err or of fac t of law; (b) upon discovery of new and materia l evidenc e; or (c) upon alleg ation that an allowanc e of benef its by the Boa

rd has been materia lly influence d by false o r fra udulent evidenc e. 38 C.F.R. § 20.1000 (2011)

.

The S ec re t ary further arg ues that the appellant "e x plicitly abandone d" the issues of asbestos exposure, hepa titis B, a nd hepatitis C during his January 2008 hear ing be fore the Boa rd. Secre tary ' s Br . at 13-14. How ever , it is the Boa rd that is r equire d to pr ovide a complete statement of rea sons or bases, and the Secre tary cannot make up for its failure to do so. See Martin v. Occ upational Safety & Health Rev iew Comm'n, 499 U.S. 144, 156 (1991) (" ' [L ]i tiga ting positions' ar e n o t en titled to defe renc e when they are mere ly appellant counsel' s ' post hoc rationalizations' for ag ency action, advanc ed for the first time in the revie wing court." ). The Boa rd does not discuss the J anuar y 2008 hear ing in its decision. There is s i m ply no indication that any statements that the appellant or his repr esenta tive made at that J anuar y 2008 hear ing influence d the Boa rd' s decision. The Secre tary cannot support the Boa rd' s deter mination by providing rea sons for the B oard' s decision that wer e not stated by the B oard. I n sum, the Boa

rd' s only explanation for i t s d ecision is the cursor y statement that the appellant "sta ted" on the For m 9 that he intended to limit his appea l. A revie w of the appellant' s Substantive Appea l indicates that he did not actua lly stat e t h at he was limit ing his appea l to three issues. The Boa

rd' s summary conclusion is inadequa te beca use it does not provide this Court or the appellant with an explanation of how the Boa rd considere d and weig hed the conflicting information

on the VA For

m 9. The Secre tary ag ain attempts to bolster the Boa rd' s decision by arg uing that the Boa rd exercised its discretion under § 20.202 and dismiss ed the appea l as to the claims for asbestos
exposure, hepatitis B, and hepatitis C beca use the Boa

rd deter mined that the Substantive Appea l did not contain any

specific alleg ations of er ror of fac t or law re g arding these c laims. I n doing so, the Secre tary ag ain makes a post hoc rationalization for the Boa rd' s decision. There is no mention in the Boa rd decision that it was dismiss ing the appea l for this re as on. The Boa rd decision does not include any discussion of the specific ity require ment of sec tion 7105. Rather, the Boa rd decla red

13that the ap p el l an t "sta ted that he was only appea ling [t hree of the six ] issues in his Substantive

Appea l." The Boa rd then conclude d that the appellant limit ed his appea l and did not file a Substantive Appeal a s to the three disputed issues. Contrary to the Secre tary ' s arg ument, it is impossibl e to deter m i n e from the Boa rd' s conclusory lang uag e that it deter mined that the Substantive Appea l was insufficient beca use it contained no specific alleg ations of err or of fac t or law. The Court expects that if the Boa rd intends
to dismiss an appea l for failure to comply with the specific ity require ment of section 7105, the Boa rd would clea

rly state this and explain the basis of its decision. T h er ef o re , the Court finds the Secre tary ' s argu m en t t h at the Boa rd corr ectly dismiss ed the appellant' s appea l under § 20.202 unavailing

. Moreove r, as noted above, the Boa rd did not discuss 38 C

. F. R

. § 20.101(d). These fundame ntal defic iencies in the Boa rd' s statement of rea sons or bases require that we vacat e the Boa rd decision that the appellant did not file a Substantive Appea l and rema nd the matter for

rea djudication. Acc ording ly , the Court will vaca te the Boa rd' s dismiss al of the issues of asbestos exposure, hepatitis B, and hepatitis C unde r 38 C.F.R. § 20.202 for f ailure to state a dequate rea sons or bases and for failure t o comply with the Secre tary ' s own reg ulations and will rema nd the
matter for appropr iate action con s istent with VA' s reg ulations. See 38 C.F.R. § 20.101(d); Robinson v. Shinseki , 557 F.3d a t 1359. 2. Claims N

ot Addressed by the Board To the extent that the appellant makes arg ument s conce rning his claims for memory loss,

m i graine s, and fasc iitis , which wer e not decide d by the Boa rd, the Court has no juris d i ct i o n t o consider these claims on the merits absent a Boa rd decision add re s sing them. See Jarrell , 20 Vet.App. at 331 (noting that the Boa rd does not have jurisdiction over a claim until the RO first issues a dec ision on it ); see also 38 U.S.C. § 7104(a)

. The Court note s that it is not a ppare nt from the rec ord that the appellant ever filed an NOD as to these claims afte r the RO decide d them. To the
extent that the appellant believes he has a pending appea l as to these claims , h e s h o u l d ra i se this issue to VA. See DiCarlo v. Nicholson , 20 Vet.App. 52, 55 (2006). I f the Boa rd deter mines that no timely NOD was filed or if it denies the claims on the merits, the appellant can appea l by filing a Notice of Appea l with the Court within 120 day s of the B oard' s decision. 38 U.S.C. § 7266(a).

14B. A ppellant' s Merit Arg ument The Court acknow ledg es the appellant' s arg ument that VA did not meet its duty to assist with
respe ct to his claim for service connec t i o n fo r a lung condition cause d by asbestos exposure. Appellant' s Br . at 24. Howeve r, as this claim has not bee n considere d on the merits by the B oard, the Court will not addre ss this issue, but will allow the Boa rd to consider it in the first instance. See Maggitt v. W

est , 202 F.3d 1370, 1 3 7 7 (F ed

. Cir. 2000) (finding that the Court "ma y hear leg al
arg uments raised for the first time with reg ard to a claim that is proper ly befor e the court, [but ] it is not compelled to do so in ever y instance" ). Acc ording ly , the Court will vacate the April 17, 2008, Boa rd decis i o n wi t h respe ct to the appellant' s claims for asbestos exposure, hepatitis B, and hepatitis C a nd rema nd those matters for further proce eding s consistent with this opini o n
. Ho we ver, the appellant' s appea l for service connection for memory loss, migr aines, and plantar fasc iitis is dismiss ed for lack of j u ri s d i ct i o n beca use those conditions wer e not the subject of the Boa rd decision now on appea l. On rema nd, the appellant is fre e to submit additional evidenc e and arg ument, including the arg uments raised in his briefs to this Court, in acc ordanc e with Kutscherousky v. W est , 12 Vet.App. 369, 372-73 (1999) (per curia m or der) , and the Boa rd must c onsider any such evidenc e or ar g ument submitt ed. See Kay v. Principi , 16 Vet.App. 529, 534 (2002). The Boa rd shall proce ed expeditious ly , in acc ordanc e with 38 U.S.C. §§ 5109B, 7112 (re quiring Secre tary to provide for "ex p editious trea tment" of claims

rema nded by Boa rd or Court).

IV. CONCLUSION Ba sed on the foreg oing analy sis, the ap p el l ant's and the Secre tary ' s briefs, and a review of
t h e rec ord on appea l, the Secre tary ' s motion for partial rec onsideration is g rante d; t h e C o u rt 's J anuar y 28, 2011, opinion is WI THDRAWN; and this opinion i s issued in its stead. The Boa rd' s April 17, 2008, decision is VACATED with respe ct to the Boa rd' s dismiss al of the issues of asbestos
exposure, hepatitis B, and hepatitis C , an d t h e m atters are REMANDED to the Boa rd for further
proce eding s consistent with t h i s o p i n ion. The appea l as to the appellant' s claim for service

connec tion for memory loss, migr aines, and plantar fasc iitis is DI SMI SSED for lack of jurisdiction.

15L ANCE: Judge , dissenting: I believe that the Court's orig inal opinion was corr ect and should

stand. There fore , I must dissent. The new majority ' s opinion upon rec onsideration is flawe d in both application and analy sis. I n application, the B oard should not be permitted another opportunity to dismiss the claims that it did not proper ly dismiss the first time. I fea r t hat i n two y ear s the Court will be reve rsing another improper dismiss al and rema nding these claims for a decision on the merits that is alre ady overdue

. More importantly , th e analy sis in the new opinion is hopelessly muddled and will lead to rampa

nt confusion in future case s as to how the Boa rd should approa ch these issues. The essential flaw in this new opinion is that fails to differ entiate betwee n the require ments for a valid Substantive Appea l and the require ments for a valid withdrawa l of an appea l. The result is an opinion that seriously undermines our rec ent en banc decision in Ortiz v. Shinseki , 23 Vet.App. 353 (2010) (en banc)

. I n Or t i z , we cl early held that a mere expression of intent is not enoug h to satisfy the Substantive Appea l require ment. Id. at 357. Yet, the curr ent o p i nion discusses the "a mbiguity " as to whether the appellant intended to appea l all issues as if that mattere d in deter mining whether the B oard' s dismis sal was pr oper. I t simpl y does not. As the majority notes, the Boa rd decision on revie w held that "the veteran h as not filed a [S ]ubst antive [A] ppeal for the other issues." R. at. 4. The corr ectne ss of this deter mination cannot be measure d by the appellant' s intent but only by examining wheth er the require ment to "se t[ ] forth—howe ver inartfully —a particula r theory of er ror" was satisfied or

waived. Ortiz , 23 Vet.App. a t 357. I n this case , ther e is no question that the appellant did not offe r any arg ument, inartful or oth erwise, as t o the claims in dispute. He merely chec ked Box A on VA Form 9, which st ates: "I WANT TO AP P E AL AL L OF THE I SSUES L I STED ON THE STATEMENT OF THE CASE AND ANY SUPP L EMENTAL STATEMENTS OF THE CASE THAT MY L OCAL VA OFF I CE SENT TO ME." R. at 309. Thus, the question of whether the Substantive Appea l require ment was satisfied turns on the issue of whether chec king this box was an acc eptanc e of an offe r by the Secre tary to waive the a

rg ument require ment. I n my view, the only rea sonable interpre tation of Box A is that it is an offe r t o waive the
arg ument require ment. As a leg al matter, such an interpre tation is consistent with both the claimantfriendly nature of the veter ans benef its sy stem, see Hende rs o n v. S h i n s eki , 131 S. Ct. 1197, 1200 (2011) (re iterating t h at VA' s adjudicator y proce ss is meant to function with a high deg ree of

16informality and solicitude for the claimant), an d t h e m o re g ener al principle that ambig uity in a

document should be construed ag ainst the draf ter, see E.L. Hamm & Associates , Inc. v. England , 379 F.3d 1334, 1341-42 (F ed. Cir. 2004) (discussing t h e co n trac t interpre tation rule of contra proferentem , which st ates t h at am biguity is g ener ally construed ag ainst the drafter of a contract). As a pra ctical matter , a veteran would be completely shocked to chec k this box in a ca se and the n to rec eive a

Boa rd dec ision dism issing his appe al for f ailure to state a

n arg ument. The majority opinion spends a lot o f t i me try ing to deciphe r the eff

ect that should be

ac co rd ed to the specific arg uments that the appellant makes in box B of the form. The corr ec t

answe r is none. The appellant' s specific arg uments cannot alter the meaning of box A. The meaning of that box is nece ssarily uniform in ever y case wher e that For

m 9 is used and the appellant' s choice
to add arg uments in box B cannot mag ically turn box A into something other than an offe r to waive the arg ument require ment. By g iving weig ht to the appellant' s additional arg uments in interpre ting box A, the majority implies that the meaning of the pre -printed lang uag e in the Secre tary ' s form is
not fix ed, but varie s depending upon how the form is filled out. Th i s i s s i m p ly inconsistent with bedroc k principles of law. Cf. Tropf v. Nicholson , 2 0 Ve t

. Ap p
. 317, 321 n.1 (2006) (" Wit hout standard word meaning s and rules of construction, neither Congr ess nor the Secre tary can know how
to write authorities in a way that convey s their intent and n o p ra cti tioner or–more importantly

–veter an can rely on a statute or reg ulation to mean what it appea rs to say .")

. Thus, the new majority opinion errs to the e x tent that the conf using new analy sis implies that box A on this version of V A' s Form 9 is not a wa iver of the arg ument require ment in this case or in g ener al. There is arg uably a separ ate i s s u e of whether the appellant abandone d his appea l. As the majority opinion notes, this was not the hol ding of the Board decision and the Sec reta ry is raising this issue for the first time on appea l

. S l i p op. at 13. That could easily be the end of the matter. Even if we wer e to enter

tain this arg ument, our case law is clea r that the appellant' s actions wer e not sufficie nt to withdraw these claims. See Kalman v. Principi , 18 Vet.App. 522, 524 (2004) (re versing Boa rd finding that claimant withdrew his appea l wh er e his statement reg arding the "only issue

rema ining," in con t ext, ref err ed to resolving the location of a video hear ing and not limit ing the issues on appea l); Verdon v. Brown , 8 Vet.App. 529, 533 (1996) (setting aside Boa rd finding t hat claimant withdre w his appea l where (1) the claimant' s letter to hi s service repr esenta tive stated he

17h ad "c ome to an ag ree ment" in reg ard to the disability rating for his rig ht leg , and (2) the ser v i ce

repr esenta tive' s prese ntation to the Boa rd omit t ed m en t ion of the rig ht leg rating , but (3) the
prese ntation of the claimant' s other service repr esenta tive mentioned the rig ht leg rating ); Isenbart

v. Brown , 7 Vet.App. 537, 541 (1995) (finding that, wher e claimant enumer ated cer tain issues and stated that there are "no additional issues" at hear ing, Court found that "the se few words spoken orally " did not provide "the formality or spec ificity

that withdrawa l of [a N otice of Disag ree ment] require s.") . There fore , rema nding this m atter f

or the B oard to provide additional rea sons or bases

on an issue wher e the rec ord is clea rly insufficient to support a finding ag ainst the appellant mere ly risks needle ss delay

and an unne cessa

ry appea l to this Court in the future. Finally , I note that this new op i n i o n ad d s some additional discussion of the Boa rd' s proce dures for notify ing appellants of potential jurisdictiona l p roblems and g iving them an opportunity

to respond. Slip op. at 12 (discussing 38 C.F.R. § 20.101(d) ( 2011)). Althoug h these
proce dures should not be o v er l o o ked in rele vant case s, proce dural err ors are simply irrele vant on issues wher e the veter an should preva il on the merits. Thus, there is no need to discuss them in this

case as they

mere ly provide a nother opportunity

to unnece ssarily

prolong this matter on rema nd. For these rea sons, I would rema nd these claims with direc tions to the Boa rd to decide them on the merits and I

dissent from the majority ' s more limited remand.

18